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Articles 1 - 30 of 1105
Full-Text Articles in Constitutional Law
Daniel Ezra Subotnik (1942-2024) Obituary
Can We Talk—Really Talk—About Critical Race Theory? What A Game For All Ages Can Teach Us, Dan Subotnik
Can We Talk—Really Talk—About Critical Race Theory? What A Game For All Ages Can Teach Us, Dan Subotnik
Touro Law Review
This essay may shock many readers. What it tries to do is look more closely than usual at the underpinnings of American racial discourse in the hope of leaving its readers, by its end, more willing than before to speak openly and listen carefully to people who disagree with them on the fraught subject of race. Wouldn’t many of us academics like to engage in a more open-minded sort of interracial conversation with a greater variety of our peers than we usually do? And yet it never seems to happen. Do any of us, black or white, feel we can …
Dan Subotnik Kept It Real, John Mcwhorter
Son Of Orwell, Chesterton, And Mill, Stephen B. Presser
Son Of Orwell, Chesterton, And Mill, Stephen B. Presser
Touro Law Review
No abstract provided.
In Memory Of Dan Subotnik—Friend And Scholar, David M. Phillips
In Memory Of Dan Subotnik—Friend And Scholar, David M. Phillips
Touro Law Review
No abstract provided.
Revisiting “Of Arms And The Militia: Gun Regulation By Legislatively Defining ‘Ordinary Military Equipment’”, Edward J. Curtis ,Jr.
Revisiting “Of Arms And The Militia: Gun Regulation By Legislatively Defining ‘Ordinary Military Equipment’”, Edward J. Curtis ,Jr.
Touro Law Review
In 2021, I published an article arguing that semi-automatic rifles and semi-automatic handguns, among other weapons, could be most effectively regulated by defining the “ordinary military equipment” that the states’ militia members were expected to produce in the event they were called to service. I based my argument on the rationale employed by the United States Supreme Court in its 1939 decision in United States v. Miller, which upheld the National Firearms Act of 1934.
The American Dream And The Politics Of Promise: Presidential Rhetoric Against Reality On Inequality, Education, And Assistance Since 2000, Abigail Demonte
The American Dream And The Politics Of Promise: Presidential Rhetoric Against Reality On Inequality, Education, And Assistance Since 2000, Abigail Demonte
Touro Law Review
No abstract provided.
Decentral Intelligence Agency: The Law And Autonomous Artificial Intelligence, Dr. Andrew W. Torrance , Ph. D., Dr. Bill Tomlinson , Ph.D.
Decentral Intelligence Agency: The Law And Autonomous Artificial Intelligence, Dr. Andrew W. Torrance , Ph. D., Dr. Bill Tomlinson , Ph.D.
Touro Law Review
Artificial intelligence (“AI”) is rapidly gaining autonomy across a range of domains, such as business, education, social relationships, and warfare. This article examines the legal and policy implications of autonomous AI agents, a rapidly evolving technology that challenges existing regulatory frameworks. Drawing from tort, agency, property, contract, privacy, human rights, and constitutional law, we propose a comprehensive approach to govern these increasingly independent entities. Our analysis begins with a historical perspective, tracing both the evolution of autonomous computational systems and of legal responses to such technologies. We then conduct a comparative study of AI governance across jurisdictions, highlighting regulatory gaps …
“Digital Integrity”: Defending The Judicial Integrity In The Digital Age, Guy Alon, Doron Menashe, Guy Itzhak Sender
“Digital Integrity”: Defending The Judicial Integrity In The Digital Age, Guy Alon, Doron Menashe, Guy Itzhak Sender
Touro Law Review
Recent revelations have shown that the protection of the Fourth Amendment in the digital age is inadequate. Despite well-known exclusionary rules regarding evidence obtained by illegal search and seizure, current trends in the digital age and the law of evidence resulted in courts that tend to include such evidence, and by doing so, create significant risk of both substantive and procedural errors and hence increase the potential for wrongful convictions. To address the matter and try to empower and modernize the protection given by the Fourth Amendment, this article suggests performing a revolution in the law of evidence in the …
Variable Standards: How Many Uninjured Class Members Are Acceptable?, Tom Flesher
Variable Standards: How Many Uninjured Class Members Are Acceptable?, Tom Flesher
Touro Law Review
Purchasers of canned tuna filed a class action against tuna producers after a price-fixing scheme raised prices above competitive levels. To be certified, a class must include only members who have suffered an injury, in this case by paying a higher price than they would have in the absence of price-fixing, but it was difficult to identify which plaintiffs were uninjured and should be excluded. Dueling statistical models failed to resolve this uncertainty, with one model suggesting up to one in every three class members was not injured at all. The Ninth Circuit nonetheless allowed this class to be certified, …
Loopholes Of Liberty: The Supreme Court’S Evisceration Of The Fourth Amendment, David J. Looney
Loopholes Of Liberty: The Supreme Court’S Evisceration Of The Fourth Amendment, David J. Looney
Touro Law Review
The Fourth Amendment’s protections against unwarranted government intrusion are currently undermined by the Supreme Court’s third party and open fields doctrines, which permit warrantless access to shared data and private land beyond a home’s curtilage, clashing with the Amendment’s aim to safeguard privacy and property in an era of advanced surveillance. These doctrines enable arbitrary governmental overreach, necessitating urgent review to restore constitutional protections. Rooted in Enlightenment principles, the Fourth Amendment historically protected “papers” and “effects” from physical trespass, as seen in Boyd v. United States. Katz v. United States introduced a “reasonable expectation of privacy” test, but its subjective …
Trading Places: The Intersection Of Lgbtq Rights And Zionist Rights Under Federal Civil Rights, Marc A. Greendorfer
Trading Places: The Intersection Of Lgbtq Rights And Zionist Rights Under Federal Civil Rights, Marc A. Greendorfer
Touro Law Review
While antidiscrimination laws have a long history at both the federal and state levels, the scope of coverage for these laws has evolved based on nuanced interpretations of terms that previously had established, static meanings. Many antidiscrimination laws prohibit discrimination on the basis of generic categorizations such as sex, religion or ethnicity but such terms are undergoing a rapid change in the way society understands and uses them. For example, sex, which historically has referred to biological gender at birth, now encompasses gender as well as sexual orientation. This article focuses on a recent Supreme Court decision relating to the …
Foreword: The Opioid Litigation Conference, Rodger D. Citron
Foreword: The Opioid Litigation Conference, Rodger D. Citron
Touro Law Review
No abstract provided.
Symposium Transcript, In Re Opioid Litigation: The Pretrial Phase, Rodger D. Citron
Symposium Transcript, In Re Opioid Litigation: The Pretrial Phase, Rodger D. Citron
Touro Law Review
In October 2023, Touro Law Center held a two-day conference on “The Past and Future of Opioid Litigation.” The inspiration for the conference was an extraordinary five-month jury trial in Suffolk County presided over by Hon. Jerry Garguilo. The trial, which was the first in the United States to include all parties in the pharmaceutical supply chain, from manufacturers to wholesale distributors to retail sellers, began in the summer of 2021. As Touro Law Dean Elena Langan notes in her introductory remarks below, because of the pandemic, the trial began and continued for a period of time in the auditorium …
Symposium Transcript, In Re Opioid Litigation: The Trial Phase, Rodger D. Citron
Symposium Transcript, In Re Opioid Litigation: The Trial Phase, Rodger D. Citron
Touro Law Review
In October 2023, Touro Law Center held a two-day conference on “The Past and Future of Opioid Litigation.” The inspiration for the conference was an extraordinary five-month jury trial in Suffolk County presided over by Hon. Jerry Garguilo. The trial, which was the first in the United States to include all parties in the pharmaceutical supply chain, from manufacturers to wholesale distributors to retail sellers, began in the summer of 2021. Ultimately, in 2022, the case settled. This allowed Judge Garguilo and attorneys from the case – Jayne Conroy, who represented one of the plaintiffs, Suffolk County, and Harvey Bartle, …
“In Defiance Of Gifts”: The Dutch Origins Of The Foreign Emoluments Clause, Liam E. Cronan
“In Defiance Of Gifts”: The Dutch Origins Of The Foreign Emoluments Clause, Liam E. Cronan
Touro Law Review
Starting in 2017, a series of lawsuits against President Donald Trump grounded their arguments on a long-overlooked portion of the Constitution: the Foreign Emoluments Clause, which in its most basic form bans government officials from accepting gifts, or “emoluments,” from foreign entities. Until 2017, few courts or scholars had ever scrutinized this provision. But with Trump’s presidency and enduring reports of his foreign business dealings, this oft-shunned area of the law suddenly garnered the attention of courts and scholars alike. Because of a clear “lack of precedent” on this matter, federal judges soon parsed historical records to determine the Clause’s …
On Guido Calabresi, Roger K. Newman
On Guido Calabresi, Roger K. Newman
Touro Law Review
Few individuals have had as long and as influential a career in law as Guido Calabresi. Cofounder of the field of law and economics, teacher, dean, and judge, he has inspired (and infuriated) multitudes. On the United States Court of Appeals for the Second Circuit, where he has served for thirty years (while continuing to teach until recently), his creativity and doctrinal innovations continue apace. He has urged the academy, legislature, and bench alike to engage in continuing conversation to improve the law and its effect upon those to whom it acts. One of these areas is certification—the practice of …
Unboxing The Box: A Deep Dive Into Solitary Confinement And When It May Violate The First And Eighth Amendments, Madison Scarfaro
Unboxing The Box: A Deep Dive Into Solitary Confinement And When It May Violate The First And Eighth Amendments, Madison Scarfaro
Touro Law Review
Solitary confinement has been a practice used for those who are incarcerated in our criminal justice system for hundreds of years. Our nation, as well as our society have evolved and continue to evolve over the course of hundreds of years. However, the use of solitary confinement has not. Even with all of the research and literature surrounding the monstrosities that come about from solitary confinement, it is still used in most of our jails and prisons to this day. The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel …
In Too Deep: Navigating An Unpredictable Algorithm, Anthony J. Ranieri
In Too Deep: Navigating An Unpredictable Algorithm, Anthony J. Ranieri
Touro Law Review
This note explores the intersection of deepfakes, a newfound and seemingly ubiquitous technology, and the protections granted by the Free Speech Clause under the First Amendment. At this juncture, society has failed to develop an infallible form of deepfake detection technology despite persistent and diligent efforts by individuals and entities alike. Hyper realistic deepfake technology has and will continue to be utilized by bad actors as a tool for advancing their nefarious goals, resulting in cognizable harm to individuals and society at large. This note evaluates the current state of deepfake technology and the potential obstacle that traditional First Amendment …
Controlling The Mischief Of New York’S Foreclosure Abuse Prevention Act Through Constitutional Pre-Emption, Shelby D. Green
Controlling The Mischief Of New York’S Foreclosure Abuse Prevention Act Through Constitutional Pre-Emption, Shelby D. Green
Touro Law Review
No abstract provided.
America’S Turning Point: Religious & Free Speech Rights Transcend The Authority Public School Districts Think They Possess, Robert L. Coleman
America’S Turning Point: Religious & Free Speech Rights Transcend The Authority Public School Districts Think They Possess, Robert L. Coleman
Touro Law Review
What is the first thing that comes to mind when thinking about the First Amendment? I would argue that most people either say “Religion” or “Free Speech.” Arguably two of the most important and humane values inherent in a functioning democratic society are safeguarded by the First Amendment. But are they? Imagine this situation. You and your spouse have a child and send him to the local public school. One day, he comes home and says that his fourth grade teacher instructed the class that each student must refer to classmates by the pronouns of that student’s choice. Your child …
The Forgotten Victims: A Case For Children’S Compensation Amidst Parental Wrongful Incarceration, Mackenzie Crabbe
The Forgotten Victims: A Case For Children’S Compensation Amidst Parental Wrongful Incarceration, Mackenzie Crabbe
Touro Law Review
Wrongful incarceration is a tragedy that occurs far more often than most would care to admit. However, it is not only the wrongfully convicted person who suffers from this phenomenon. Most innocent people who are incarcerated have a family who is then affected and suffers immensely. Many wrongfully incarcerated individuals have children who then grow up without their parents, or with a significant barrier hindering their relationship with their parents. Typically, incarceration, and the separation of families that comes along with it, is justified by the need to regulate crime and keep communities safe. How[1]ever, when innocent people are serving …
Evaluating Competitive Equality: The Department Of Education’S Regulations And Impact On Title Ix In Women’S Sports, Lola-Marie Pyros
Evaluating Competitive Equality: The Department Of Education’S Regulations And Impact On Title Ix In Women’S Sports, Lola-Marie Pyros
Touro Law Review
Title IX was enacted to guarantee women equal opportunities in athletics by preserving competitive fairness. That objective has been challenged by evolving policies on transgender participation in women’s sports. Proponents of inclusion frame the issue as a matter of civil rights, while opponents emphasize physiological differences between the sexes that remain even after medical transition. Shifting interpretations by the Department of Education, influenced by changes in presidential administrations, have created legal uncertainty, culminating in Tennessee v. Cardona, which rejected an expansive definition of “sex” to include gender identity. This Note argues that maintaining the integrity of women’s athletics requires recognition …
The False Evidence Ploy: A Coercive, Not Just Deceptive, Police Tactic, Alexa D. Sondey
The False Evidence Ploy: A Coercive, Not Just Deceptive, Police Tactic, Alexa D. Sondey
Touro Law Review
Why would people confess to a crime they did not commit? It may seem hard to imagine that an innocent person would confess but as this Note will show, false confessions are a real and serious issue. One cause of false confessions is the False Evidence Ploy - a police interrogation tactic where police falsely tell a suspect they have some sort of incriminating evidence against them. This Note argues that the Ploy is psychological coercion, as it may cause innocent suspects to believe they actually committed the crime and then confess. N.Y. Bill S324A presented a solution, banning the …
Defeating Antisemitism In The World’S First Democratic Republic: The American Revolution And Jewish Legal And Political Equality, Paul Finkelman, Lance J. Sussman
Defeating Antisemitism In The World’S First Democratic Republic: The American Revolution And Jewish Legal And Political Equality, Paul Finkelman, Lance J. Sussman
Touro Law Review
At a moment when antisemitism is on the rise in the United States, we believe it is useful to consider how the American Revolution led to the first nation in the world where antisemitism was fundamentally contrary to the national constitution and Jews were entitled to full rights as citizens of the national government. As we explain in this article, during and after the Revolution, Jews were free to participate in all professions and general civic life, naturalize (if immigrants), vote, serve on juries, become lawyers and judges, become military officers, and attend universities. Jews had almost none of these …
“Forced Worship Stinks In God’S Nostrils”: The Inquisition, Sepharad, And The American Experiment, Isaac Amon
“Forced Worship Stinks In God’S Nostrils”: The Inquisition, Sepharad, And The American Experiment, Isaac Amon
Touro Law Review
In December 1791, the Bill of Rights, comprising the first 10 amendments to the U.S. Constitution, enshrined fundamental protections for individual freedoms, with the First Amendment guaranteeing liberty of conscience. This milestone, however, was the culmination of centuries of struggle. The arrival of Iberian Jews, including conversos, in North America played a pivotal role in shaping the course of American history. The Founders referenced the Inquisition in their letters and debates, particularly in discussions on legal protections for criminal suspects and the broader issue of religious liberty. Founding assurances of religious freedom to Jews and Christians stand in stark contrast …
The Punishment Of Cruel And Unusual Conditions: Extending The Purely Objective Standard Adopted In Kingsley V. Hendrickson To Claims Of Deliberate Indifference, Samantha M. Davis
The Punishment Of Cruel And Unusual Conditions: Extending The Purely Objective Standard Adopted In Kingsley V. Hendrickson To Claims Of Deliberate Indifference, Samantha M. Davis
Touro Law Review
In 2015, the Supreme Court in Kingsley v. Hendrickson held that a pretrial detainee claiming excessive force on the part of the state must only show that the force used was objectively unreasonable. Prior to the adoption of the purely objective standard, many courts around the country were analyzing such cases through a subjective standard to determine whether the officers subjectively knew that the force used against a pretrial detainee was unreasonable. The absence of this objective standard essentially allowed state officials to use excessive force against pretrial detainees without violating an individual’s Constitutional rights. The Supreme Court reasoned that …
Takings, Original Meaning, And Applying Property Law Principles To Fix Penn Central, John M. Groen
Takings, Original Meaning, And Applying Property Law Principles To Fix Penn Central, John M. Groen
Touro Law Review
No abstract provided.
Livin' On A Legislative Prayer: How Prayer At A School Board Meeting Survives Under An Exception To The Establishment Clause, Brian Muff
Touro Law Review
This Note discusses the circuit split between the Ninth Circuit and the Fifth Circuit on whether prayer should be permitted to open up a school board meeting. First introducing the topic and explaining the history of legislative prayer in America, the Note then discusses governing Supreme Court precedent concerning school prayer and legislative prayer. After analyzing the cases that are the subject of the circuit split, the Note concludes with a recommendation that the Supreme Court permit the recitation of prayer to begin a school board meeting, citing the commonalities between a school board and a legislature and making three …
School Choice & Religious Discrimination: A Story Of The Illusory "Wall Of Separation," Sour "Lemon Tests," And Overgrown "Baby Blaines", Keren Kendil
Touro Law Review
The significance of elementary school education in shaping a child's future, and the success of society, is immeasurable. The free public school system is built on the premise that every child deserves to have the equal opportunity to learn and succeed. However, this system overlooks the millions of children attending private schools due to their religious and moral convictions. This note delves into the imperative of ensuring universal access to quality elementary education for every child, irrespective of their family's religious affiliations or preferences for private schooling, highlighting the constitutional imperatives of ensuring that every child has the opportunity to …